The opinion of the court was delivered by: KRAFT
Following the entry of judgment upon the verdicts the plaintiff filed a timely motion for new trial in support of which 42 reasons were assigned. The record reveals, however, that plaintiff's counsel properly preserved but seven grounds,
by specific exceptions following our charge. (n.t. 597-601).
Of these seven grounds, the plaintiff's brief and oral argument
pressed only the following: (1) the charge of the Court was one-sided in favor of the defendants by the overemphasis placed by the trial judge on the defendant's contentions and unfair comments by the trial judge on the evidence; (2) the Court erred in its charge on contributory negligence; (3) the Court erred in its charge on the burden of proof of the plaintiff.
The plaintiff's theory of liability was "* * * that her husband was killed when knocked from the standing-rear platform of a backing-up fire truck on which he was riding, when it banged down and/or got stuck in a sunken sewer lateral. The responsibility that flowed from the sunken sewer lateral was a critical issue in the case and upon which plaintiff's entire case was bottomed. Plaintiff contended that the defendants were negligent for (1) improperly tamping and backfilling the ditches; (2) improperly inspecting and maintaining the ditches; and (3) inadequately barricading the street under the circumstances." (Plaintiff's brief in support of motion for new trial, p. 4.)
The accident was unwitnessed and the plaintiff's case was based on circumstantial evidence. In this regard, we charged the jury on the plaintiff's burden of proof as follows, at p. 561:
"When a party, as the plaintiff in this case, who has the burden of proof, relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, that is circumstantial evidence, in order to prevail, must be adequate to establish the conclusion sought, and must so preponderate in favor of that conclusion as to outweigh in your minds any other evidence and reasonable inferences therefrom which are inconsistent therewith."
Plaintiff's counsel contends that the foregoing language imposed upon the plaintiff a burden of proof not required by Pennsylvania law, as set forth in Smith v. Bell Telephone, 397 Pa. 134, 153 A.2d 477 (1959). We disagree. Our charge was an exact quotation from Smith, which held (p. 139, 153 A.2d p. 480):
"Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith."
There was sufficient evidence in this case from which at least two other explanations of this accident, inconsistent with the plaintiff's theory of liability, might reasonably have been inferred. The decedent may have jumped or stepped from the rear platform of the truck, if, in fact, the truck was stuck in the ditch; or, he may have fallen therefrom in an attempt to prevent the unsecured pump from falling off. The pump, which weighed approximately 200 pounds, was simply resting on the rear platform, where, customarily, it was held in place by a fireman's foot.
Christ produced evidence to establish that there were barricades, reading "ROAD CLOSED", flares and warning signs located at each end of the block
where the accident occurred. There was evidence which, if believed, was sufficient to prove that the backfilling and tamping of the sewer laterals had been properly done. The particular lateral in front of 2133 Cleveland Avenue, when inspected by Officer Davis at 4:30 p.m. on December 12, disclosed no settlement whatever. Later, at 5:30 p.m., some slight settlement was noted. There was evidence that inspection at 6:30 p.m., revealed that it had settled rapidly in various parts to depths of 8 to 16 inches. This degree of settlement in this time period, in a ditch 23 feet long and 3 feet wide, could be found to have been caused by a subsidence of the soil, arising from a cause other than improper backfilling or tamping.
At 7:00 p.m., about half an hour before the accident, a Mr. Matthews, who resided at 2128 Cleveland Avenue, drove his 1951 Rambler station wagon eastwardly over the sewer laterals and experienced no difficulty. This witness later observed the fire truck backing eastwardly on Cleveland Avenue toward Morwood Avenue. He noted that the truck stopped only momentarily at each lateral and then backed over. He testified that the last lateral over which the truck backed seemed deeper than the rest, but that the action of the truck appeared the same, except that it had a harder time getting over it. Mr. Matthews first saw the decedent only when he noticed the body of a man lying in the street.
The truck driver, Mr. Campbell, testified that he only felt slight bumps, which were all about the same as he backed down the street; that he was backing at a speed between 0 and 5 miles per hour toward the home of Mr. Marcus, another volunteer fireman, who was to accompany Mr. Campbell and the decedent to another part of the community to pump out a cellar partially flooded by the heavy rain then falling. Mr. Campbell heard no unusual noise and noted that "nothing happened" during the trip along Cleveland Avenue. When he stopped the truck, upon arrival at the Marcus home, someone approached and told him that a man was lying in the street. This was Mr. Campbell's first knowledge of an accident.
Officer Davis testified that he had interviewed Mr. Campbell on the night of the accident around 9:30 p.m. He testified that Mr. Campbell then told him that the truck had become stuck in the lateral and he had had to "yo-yo" the truck to get it out. At the trial, Mr. Campbell testified, however, that he had only asked Officer Davis to find out if Mr. Trate was dead or alive. Campbell was not a party to the action at this trial (see footnote 2) and the statements attributed to him by Officer Davis were not admitted against Christ.
In our view the jury was entirely warranted, under the applicable Pennsylvania legal standard, in concluding that the plaintiff had failed to establish by a fair preponderance of the evidence that the decedent was " * * * knocked from the standing-rear platform of a backing-up fire truck * * * when it banged down and/or got stuck in a sunken sewer lateral." That standard, applicable under the evidence in this case, is set forth in Lear v. Shirk's Motor Express Corp., 397 Pa. 144, 149, 152 A.2d 883, 886 (1959), in which the late Mr. Justice McBride, speaking for the Court, said:
" Evidence sufficient to warrant recovery must describe, picture or visualize what actually happened sufficiently to enable the fact-finding tribunal reasonably to conclude that the defendant was guilty of negligence and ...